Sotomayor and First Amendment: She Struck Down Gag on Press, Released Vince Foster Suicide Note

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By: E&P Staff

There are hints in the record of Judge Sonia Sotomayor that the nominee for U.S. Supreme Court understands the importance of a free press and judicial transparency, the Reporters Committee for Freedom of the Press (RCFP) says.

As others digging into Sotomayor’s record on the Second Circuit Court of Appeals have discovered, the judge has not been involved in many hot-button cases. But the RCFP said three cases in particular shed light on her view of the First Amendment.

— Sotomayor took perhaps her strongest stand towards ensuring press access to the courts when she wrote the 2005 opinion striking down a gag order imposed on the press in the retrial of former Credit Suisse First Boston executive Frank Quattrone. The gag order had been imposed by a U.S. district judge who said he wanted to avoid the possibility of a mistrial that had been ordered in a similar high-profile case when jurors were contacted by reporters.

Judge Richard Owen ordered that “no member of the press or a media organization is to divulge … the name of any prospective or selected juror.”

A dozen news organizations appealed the order, arguing it was an unconstitutional prior restraint on the press.

In her opinion, Sotomayor called prior restraint of the press “the most serious and the least tolerable infringement on our freedoms of speech and press.”

— Sotomayor’s record on public documents cases “has skewed more in favor of withholding records under the federal Freedom of Information Act rather than ordering their release,” RCFP said. But the group noted that she did order the release of the suicide note of former deputy White House counsel Vince Foster.

The Wall Street Journal had sued the Justice Department for U.S. Park Police and FBI reports on Foster’s death, and for a copy of his apparent suicide note. Justice refused to release the note and the FBI report, while releasing the Park Police report with portions redacted.

“Sotomayor sided with the government on the reports but wrote that the note ‘touched on several events of public interest,’ including the controversy related to the Whitewater investment issue, and that it ‘implicated government agencies and employees in misconduct.'”

— In 1994, Sotomayor wrote the opinion dismissing defamation and trade libel claims against CBS, one of the few defamation or libel cases she has handled, RCFP noted. An infant monitor manufacturer, Aequitron, sued CBS over a 1989 CBS This Morning show that reported on the failure of some Aequitron monitors that were used to prevent Sudden Infant Death Syndrome. Included in the segment were interviews with mothers who blamed their babies’ deaths on the failure of the monitors.

The defamation and libel claims were dismissed by a district court in Minnesota, but claims the reporting violated the Minnesota Deceptive Trade Practices Act, and another business claim was allowed to go forward.

“In an opinion that focused entirely on procedural grounds, Sotomayor upheld the Minnesota court’s ruling dismissing the trade libel and defamation claims and held that there was personal jurisdiction over the business claims, thus allowing them to go forward,” RCFP said.

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